Expungement or expunction is the process where a criminal record is dismissed or shown as dismissed when someone looks up your record. The expungement process is also known as setting aside a criminal sentence. Under California penal code 1203.4, an expungement or dismissal frees a person from negative outcomes of a conviction such as missing out job opportunities because the person was convicted of an offense.
LA Criminal Defense Attorney will help you expunge your criminal records, provided you meet all the necessary requirements. Our experienced team of attorneys will take you through the process that will ensure your criminal records are dismissed. We primarily work with clients with cases out of Los Angeles County.
Who is Entitled to Receive an Expungement in California?
Penal Code 1203.4 allows for expungement of a misdemeanor offense on condition that the applicant:
- Has been given probation for a conviction and
- has obtained early release or has successfully completed either a misdemeanor or felony probation,
- has paid all reimbursements, restitution, and fines which make part of the sentence as per the court orders,
- he/she is not currently on probation or serving a sentence for another crime, and
- he/she is not currently facing charges for another offense.
- Has not been given probation and
- The conviction was an infraction or a misdemeanor,
- It’s been not less than a year since their conviction,
- has fully complied with the court sentence,
- he/she is not presently facing charges for another offense,
- he/she is not presently serving another sentence, and
- has lived an upright and honest life and obeyed the law since when they were convicted.
The expungement applicant qualifies for a discharge and the courts can choose to allow the discharge if you were on probation, but you didn’t fulfill all probation conditions, didn’t receive an early release or you were convinced of any of the offense mentioned in the Vehicle Code section 12810 (a) to (e) BUT:
- You’re not presently on probation, facing punishment for or charged with any other crime
- You’ve paid all reimbursements, restitution, and fines which make part of your sentence
Someone that is sent to a state prison because of violation of probation or when judgment was made doesn’t qualify for an expungement. However, there’s an exemption for someone who was supposed to serve their conviction in county jail if they had executed the offense after re-alignment. The court will hold a hearing where it has the option to determine whether your case deserves to be expunged. The judge will look at how severe your offense is, your past criminal background, your behavior while you were on probation and all the evidence you submitted to prove that you qualify for the expungement.
There are some criminal offenses that can’t be expunged. They include serious sex violations executed against children, for example:
- Statutory rape
- Lewd acts with a minor
- Sodomy with a minor
- Oral copulation with a minor
Can You Expunge Your Records While Still on Probation?
It is still possible to get your records expunged while you’re on probation. Pursuant to California Penal Code 1203.3, a motion should be filed for early conclusion of your probation with the court at any time. The officiating Judge will look into your case and if they find it in the justice interest to end your probation prematurely, the same judge can be asked to expunge the underlying conviction. In most occasions, both requests can be made at the same hearing. The defendant should at least serve half of the probation before applying for a motion for early termination as it will better your chances for success.
However, the soonest a criminal conviction can be expunged is one year after the date of conviction. This means that you should delay and file for early discontinuation of your probation after a year. In addition, it is very essential that you complete all the necessities for the sentence which include payment of and restitution and fines, community service and participating in all programs and classes.
Can You Still Apply for Expungement Despite Having Multiple Cases?
You can still apply for expungement even if you’ve been convicted with multiple felonies. Each conviction should be dealt with separately and you have to file a petition for a discharge for each conviction that you want to be expunged. The court will handle each petition and conviction as a completely separate case.
What You Need to do Before Applying for Expungement
Before you begin to clean up your criminal record, first you need to know what’s on the record. If you’re facing more than one conviction, you will need to know the following information about each conviction:
- Your case or docket number
- The date when you were convicted
- The section number and code name that you were convicted of For example, Vehicle Code section 14601(a)
- If there was a verdict, if you entered a plea and what was the plea
- If you were ordered to serve time on probation and how long was the probation
- If you made any payment like restitution as part of your probation
- Whether you complied with all the conditions and terms of probation
- Whether you were sent to a state prison, which prison, and when you were released from prison
You should then get a copy of the information on your criminal records. This information can be obtained from the following sources:
- California State Department of Justice or the Criminal Record Review Unit
- The court papers that were given to you when you were being convicted
- The superior court where your conviction took place
- Your probation officer, parole officer or attorney
Next, you need to figure out what options you have. You can choose between the following options:
- Sealing records - You can petition a court to seal your criminal and arrest records. If the Judge certifies that you’ve met all the requirement, your records will be sealed and made unavailable to the public. There are limitations depending on the end result or the type of remedy you are asking for
- Dismissal of misdemeanors
- Dismissal of felonies
The next thing you need to do is to figure out whether you qualify for a dismissal. Lastly, you need to file your petition with the court. If you’re filing a petition for a dismissal, a felony or an early release from probation, you’ll need to contact the superior court clerk and request them for the following information:
- Ask for their copies of your convictions form
- Find out if you need to submit additional copies of the petition and how many copies you need to submit
- Find out if the court rules require you to serve your petition copies to the probation department or the district attorney
- Get the correct mailing address for filing by mail
The Expungement Process
A person is only eligible to petition for an expungement if it’s been over two years since completing their sentence. Pursuant to Penal Code 1203.42, to be eligible for expungement, the defendant has to make an appeal to the court. The defendant can apply either:
- Through an attorney
- In person or
- Through a probation officer who gives a written approval
The court will then either:
- Allow the accused to extract their guilty plea to a not guilty plea or
- Set aside the guilty verdict if the accused is sentenced after entering a not guilty plea
Then, the court will discharge the allegations against the accused. The accused will then be freed from all disabilities and penalties arising from the crime to a similar scope as normal expungement under Penal Code 1203.4.
The court must follow several steps before it grants an expungement. The help of an attorney in LA who is experienced in expungement is advised though it’s not necessary. The attorney will be required to follow the steps below:
- Examine your case to ascertain if the defendant qualifies for this kind of relief
- Carry out the legal investigation on the relevant and current law on expungement
- Filing the necessary documentation within the necessary time period and serve the prosecuting attorney as necessary under Penal Code 1203.4. They’ll also file a petition to minimize your felony conviction to a misdemeanor where applicable
- Be present for the expungement hearing at the appointed court and ensure you receive a copy of a court order, signed by the Judge, indicating that your case has been expunged, supposing the matter is accorded
It is important to file the paperwork on time. The expungement applicant must give the prosecutor 15 days’ notice before the hearing, to ensure the prosecutor has enough time to go through the case and oppose where necessary.
The process can take two to four months depending with the court. Though in some cases a hearing can take place within 30 days. How long each case will take may vary depending on:
- Whether the district attorney rejects the case
- The circumstance surrounding the case
- How long ago the case was filed
After the court grants you an expungement, a judge has to sign an order changing your plea to not guilty then dismiss your case. You will be given a copy of the order for your records. In addition, government agencies will be ordered to update your criminal records to show the expungement. Background check companies for the private sector will be updated when doing their period updates, which usually takes place once yearly.
If your expungement petition is denied, your attorney will help you determine why the case was denied and explain to you your best options. You may be able to refile your petition with more evidence if that’s the best option in your specific case.
Benefits of an Expungement
People lose certain privileges and benefits once they get convicted of criminal charges. There are several benefits that you can enjoy after obtaining expungement of your records in Los Angeles. Some most important benefits include:
- It makes it easy to get a state professional license - Expungement provides great benefits if you’re looking for professional licenses. However, you still have to reveal your conviction in reply to questions asked when applying for a public office or a state license
- An employer cannot discriminate against you because of expungement convictions - Most employers will do a background check before hiring you. This will reveal any arrest records, probation status, and convictions. An employer should not take into consideration an expungement when making decisions to hire you
- Expunged convictions can’t be utilized to dismiss your credibility in court as a witness - If you’re acting as a court witness, the opposite side is not allowed to raise the subject on your expunged felony conviction
- Expungement can help you avoid some immigration consequences like denial of naturalization, denial of admission and deportation. However, expungement of criminal records doesn’t provide immigration benefits
- It also redeems you for your past mistakes and brings closure to a disappointing period in your life
- The process of expungement can help reduce the ill effect and stigma associated with a criminal conviction, in situations where professional organizations do background checks before you are invited to join them or hold a seat or a position in the organization
- Your right to serve on a jury is restored. Under California expungement law, you may serve on a jury if your civil rights have been restored after being sentenced with malfeasance or a felony while holding a public office
- Expungement helps you qualify for student loans and housing assistance
Limitations of Expungement
Some biggest limitations of expungement are:
- An expungement does not delete criminal convictions, it revises the records to show that:
- Your plea of guilty has been removed and in its place, a plea of not guilty entered, or your judgment of guilty has been put aside after a trial by the jury
- Your probation has been stopped
- Your case was discharged
Even after an expungement, a background investigation on you may still show that you have a criminal conviction. However, it will show that your sentence was expunged successfully
- An expungement cannot prevent a conviction from being “priorable”. Meaning that in case you commit another offense, the prior offense can be considered when determining your sentence. For example, if you commit a DUI for the first time, the offense is “priorable” for the following 10 years. A subsequent DUI offense will be handled as a second DUI offense and the punishment will be more severe, even if you received an expungement for the previous DUI offense. It cannot reverse a driver’s license revocation or suspension
- An expungement cannot reinstate gun rights after committing certain misdemeanor offenses or felonies under California Penal Code 29800. Consequently, you can’t become a law enforcement officer in case you are charged with a felony and it wasn’t reduced to a misdemeanor
- Expungement does not end the obligation to enroll as a sex offender if convicted with sex offenses. However, some relief, for example, the governor’s pardon or a rehabilitation certificate may relieve a registered sex offender of this duty
- An expungement cannot stop you from facing the immigration outcomes of criminal convictions. This is due to the fact that immigration courts solely accept a relief after a conviction if the conviction was lawfully invalid
- Expungement does not excuse you from disclosing any criminal convictions when making an application for a public office, state license or when contracting with a state lottery
Expunging Felony Records and Drug Charges
In LA, it is possible to expunge a felony provided you have fulfilled all your probation terms and you were not sentenced to state prison. Successful finishing of probation is essential for an expungement however, judges can choose to expunge your felony conviction even when you infringe your probation. How seriously you violated your probation will decide whether your felony conviction will be expunged or not. If your felony sentence was filed as a felony, it can be reduced to a misdemeanor then you can expunge it. You may keep certain benefits from an expunged misdemeanor which can be declined if convicted with a felony.
In case you were charged with possessing drugs, if you get referred to a diversion program like a Proposition 36 or a Deferred Entry of Judgement and you’ve fulfilled all the conditions successfully, your record should be cleared. However, if you violated probation or didn’t fulfill the requirements, the conviction may still be on your records. In California, if you’re convicted of possessing marijuana for personal use, you don’t need to get an expungement as convictions for possessing marijuana are automatically deleted from your records after two years.
Expunging an Infraction Record
All infractions qualify for an expungement. Like in other infringements, the defendant must have finished the conviction and shouldn’t be serving any other conviction or facing new charges and should have paid all fines. If no probation was given the defendant should wait for at least a year from the sentencing date to apply for expungement.
Pursuant to Penal Code 1203.4a, infraction expungement has an added benefit which isn’t given to those that expunge felony or misdemeanor cases which involved probation. After an infraction expungement, the defendant can say they weren’t convicted in all circumstances. The exceptions for misdemeanor and felony cases that involve probation don’t apply to infractions. An infraction expungement provides the best legal benefit under expungement laws in California.
Sealing and Destroying Criminal Records After an Expungement
A record seal is the legal process of hiding or concealing records from a person’s criminal records so that it cannot be accessed by any government, private or public agency. There are various ways of sealing criminal records the most common being:
- Sealing of arrest records
- Sealing of juvenile records
- Sealing of records after case dismissal or plea withdrawal
Juvenile Arrest Records
In order for your juvenile records to be sealed, you have to meet two criteria:
- The jurisdiction of the juvenile court must have terminated your case not less than five years ago
- You should not have been convicted of an immoral crime or dishonest crime as a grown up
However, even after meeting the above two criterias, there are some serious crimes that cannot be sealed for example robbery, child molestation, and murder.
Sealing Records Generally
Apart from the above serious crimes, it is generally possible to seal arrest records if:
- The district attorney dismissed your case
- A jury trial found you not guilty
- No accusatory pleading was filed after you were arrested
If the applicant proves that they were factually innocent of the charges, the records of arrest will be ordered sealed for three years after which they’ll be destroyed.
Certificate of Rehabilitation and Pardon
A certificate of rehabilitation is an order by the court proclaiming that you’ve undergone rehabilitation after a criminal conviction. It’s also a recommendation for the governor to give you a full pardon. The court will dispatch certified copies of the certificate of rehabilitation to the governor after granting it to you. This acts as a petition for a pardon by the governor. A pardon by the governor grants you all political and civil rights of citizenship which include the right to own and keep a legal firearm, in some cases and the right vote.
In order to qualify for a certificate of rehabilitation, you must meet the following requirements:
- Be convicted of a misdemeanor or a felony violation of any sex offense that has been discharged in accordance with Penal Code 1203.4, provided the applicant has never been imprisoned since the discharge, is not currently serving probation for any felony and provides evidence of residing in California for the last five years
- Be convicted of a felony and sent to a state prison or under the authority of the California Department of Corrections and Rehabilitation.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.